Defamation Bill
Debate between Lord Garnier and Peter Bottomley(11 years, 7 months ago)
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Sir Edward Garnier
The Court of Appeal disagreed with that and said—the case is called Sperrings, if the hon. Lady is interested—that there was no basis for suggesting that Jimmy Goldsmith was misconducting himself, albeit that a reasonable person could comment that he was using his financial wealth to bully those defendants. The same could be said of Robert Maxwell, who stole Daily Mirror employees’ money in order to run libel actions against every Tom, Dick and Harry he could lay his fingers on.
What is the difference between complaints about financial wealth or strength in the hands of individuals being used to bully defendants, compared with financial wealth in the hands of corporate claimants being used to do that? If the case is an abuse—if it does not come within the terms of the currently unamended clause 1—the court will stop it. However, what has happened is that a general case has been built up, but on the basis of about two, three or four cases—I congratulate the campaigners and those who have seduced my hon. Friend and the Opposition into believing that what they are doing is in the public interest. That is illogical, although it has been highly effective politically—you can perhaps hear from the frustration in my voice, Mr Deputy Speaker, that I recognise defeat when I see it. I am about to be defeated, because the Government have simply whipped the people who voted one way last week to vote another way this week.
Sir Peter Bottomley (Worthing West) (Con)
Will my hon. and learned Friend give way?
Sir Edward Garnier
Although my hon. Friend was not here at the beginning of the debate, I will, if I may, permit him to intervene.
Sir Peter Bottomley
My hon. and learned Friend is absolutely right, but as soon as I saw that he was on his feet, I came as fast as I could, dropping everything else. Last week I voted the way I intend to vote this week.
Sir Peter Bottomley
And I still think I am right. Can my hon. and learned Friend give some examples of where corporations have taken defamation or libel cases that were necessary and could not have been dealt with in another way? As he says, the problem with illustrative cases is that they do not always make good law, but the cases involving Dr Peter Wilmshurst and Simon Singh were examples of how the law did not bring justice within a time scale and for an amount of money that ordinary people or publishers can afford.
Sir Edward Garnier
Obviously I cannot give my hon. Friend a catalogue of cases one way or the other. What I can tell him is that if clause 1 is amended as he always wanted and as the Government now want, the case of Wilmshurst, in which he was sued by NMT Medical, would probably pass the “serious financial loss” hurdle. If my hon. Friend thinks that he is helping Dr Wilmshurst or those like him by amending the Bill in that way, I am afraid he is wrong. If he wants to lock future Dr Wilmshursts into satellite litigation about “serious financial loss”, then make my day, as they say. That will be the unintended consequence of what is going to happen.
As I said last week and as was said in the other place yesterday, the great and sadly late Lord Bingham said in the case of Jameel that corporations have trading reputations that ought to be worthy of protection. A corporation’s trading reputation is a thing of value. However, the Government and those who support them on this particular volte face confuse themselves because they have separated out—no doubt for well intentioned reasons—non-trading companies and trading companies for the purposes of the amendment to clause 1. However, trading companies have different types of reputation, as Mr Justice Tugendhat said in the case of Thornton last year. Individuals—and certainly companies—have different segments of their reputation that are susceptible to being defamed.
I used the example of the BBC last night on “The World Tonight”, at about quarter past 10. The BBC is a large trading corporation. It sells things for profit—programmes—but it has another reputation as a source of unbiased and disinterested news reporting. It has another reputation as a supporter of good causes such as Children in Need and another reputation as an employer. I could libel the BBC in its trading capacity and it might or might not overcome the hurdle that clause 1, as about to be amended, would present. However, I could also accuse it of being, let us say, a hotbed of or a magnet for child sex abusers. That would not necessarily cause it serious financial loss, but it would most certainly defame the BBC and undermine its reputation as a place to be employed or a place to go and visit. Despite the fact that that would cause it serious reputational loss, the BBC would be unable to vindicate its reputation, because it would be unable to show serious financial loss.
It strikes me that as I begin to repeat myself and say what I said last week—
Sir Edward Garnier
My hon. and very elderly Friend says, “That’s age.” Well, he has more experience of—
Sir Edward Garnier
It is all sorts of things and it will not cause my hon. Friend financial loss, but he will still be able to sue me if I repeat it outside—assuming that accusing somebody of my hon. Friend’s distinction of being elderly were defamatory. But anyhow, I digress—I am amused to be led to digress by my hon. Friend, because he is an amusing and diverting person.
I will not call a Division this afternoon, because I can do a bit of arithmetic and also because by not calling a vote I will create more embarrassment for the Government. I urge them to think carefully about what they think they are doing, why they have done it, and whether they can justify what they have done. Are they able to answer accusations of backstairs deals, and allegations of incoherence or producing a measure that will have huge and unintended consequences of deleterious effect?
Simon Hughes
I understood that and I will say why I think the measure is a reasonable last change that the House should support. I wish to pay tribute to several people, including Lord Lester of Herne Hill who introduced a private Member’s Bill to Parliament some years ago and in many ways triggered this reform of our defamation legislation. I also pay tribute to my noble Friend Lord McNally, who has steered a controversial Bill through many stages. He referred in his speech yesterday to the fact that it has been through the pre-legislative stage and the legislative stage. It has been considered by the Liberal Democrat party; there were conference debates and resolutions were passed on it, and there have also been many cross-party conversations.
I was a little troubled that the hon. Member for Stoke-on-Trent South (Robert Flello) was slightly churlish about the point we have reached. His party and mine, as well as the Conservatives and Cross Benchers, have worked together on the threshold for dealing with corporate claims, and we have made progress on that. Therefore, today is progress along the lines that he wanted, and that he knows colleagues from all three parties wanted. He pretends to be naïve—which he is not—about the way these things work, whether or not there is a coalition Government. At the end of a political process in Parliament, negotiations take place in the public light and also behind the scenes. As he knows perfectly well, that has happened with all three parties to try to get to the most agreeable and consensual place. My party has been as much a part of that process as the Labour party and the Conservatives in arriving at this point.
The Minister rightly says that this is not about what is known as the Derbyshire principle. For those outside the House who have no clue what that is, in essence—I do not pretend to be legalistic about this—it is a principle enunciated by the courts in a case to do with a local authority, which effectively stated that local authorities cannot generally sue to protect their reputation because they are public authorities. However, as I think everybody has agreed in both Houses, common law will evolve, which does not stop it being dealt with by further judgments of the courts across the United Kingdom. In light of the Localism Act 2011, there may be further definitions of a public authority that seek to deal with the issue of a private body that does public authority work. That business remains unaltered by the Lords amendment.
The Lords amendment, which has returned to this House in a form I hope will be accepted, would provide one additional hurdle for people who are seeking as companies to use this country’s defamation legislation. It states:
“For the purposes of this section, harm to the reputation of a body that trades for profit—”
therefore not a body that makes no profit—
“is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
I heard the previous speech and we can debate whether that is the perfect wording. It is, however, a clear statement that there must be “serious financial loss” before someone gets to a position from which they can win a defamation case. The Government rejected the idea of a pre-hearing. I understand that and think they were right because it would have meant going round the courts twice.
The Government have accepted that the bar for companies should be higher than that for individuals, which I am sure is right. That measure is meant to deal with the sort of cases that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) alluded to where in the past individuals were clobbered by companies with huge resources and assets in a way regarded as totally unfair. As Lord McNally pointed out yesterday in the House of Lords, not only have we now, I hope, protected the little person in financial terms against the big corporate giant, we have also done things to protect academic reputations and academic dispute, and to allow that to go on without the threat of defamation. We have also, I hope, made the law clearer and brought it up to date.
The hon. Member for Stoke-on-Trent South said that if the Labour party returns to government, it may wish to return to these matters, and I suppose any Government may want to do that. In this country, however, we understandably do not reform defamation law—generally a cross-party exercise—very frequently. This is a major piece of legislation and I hope that we have dealt with the last tricky issue in a way that provides greater protection for the individual against the big corporate. I think that is a job well done in both Houses of this Parliament.
Sir Peter Bottomley
I apologise for not being present at the start of the debate, and I am grateful to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) for introducing my interest. I should declare that I have been successful in three major defamation actions, and I hope I shall not have to take another.
I want to tell the story of Richard Doll, who drank too much college beer when applying to study mathematics at Trinity college, Cambridge. He did not get chosen, so he went to St Thomas’ instead. He had an interest in asthma and lung diseases. In 1950, he did a quick study on whether motor fumes or tarmac caused lung cancer, as was suspected at the time. He and his colleague, Bradford Hill, discovered that the common factor was smoking. They did not show until 1955 beyond any doubt what had first been suspected by German scientists in the 1930s, namely that, if a person smokes 25 cigarettes a day, their chances of developing lung cancer or associated serious illnesses increased by 25 or 50 times—I forget the actual figure.
If the too-frequent current habit of commercial companies suing for damage had been prevalent when Richard Doll published his material, I suspect that the tobacco companies would have shut him down. When he later came out with the proposed link, which was proved, between asbestos and serious lung conditions, the same thing might have happened. One vital question is how we protect scientific speculation and the publishing of preliminary findings without the risk of action.
I believe we should accept the Lords amendments in lieu because they give conditions in which court authority is necessary if the action is to start. There is one condition by which the court “must” rule action out. I hope the courts realise that they “may” disqualify such action on other grounds. There is a “must”, but the measure leaves open the “may” option for disqualifying cases.
Sir Edward Garnier
Beyond clause 1—the serious harm test—we have clause 6, on peer-reviewed statements in scientific or academic journals. Clause 6 comes to the aid of scientists or medical experts such as Professor Doll if they make statements of that nature that are published in a peer-reviewed magazine or whatever, but there are plenty of other ways in which they could be assisted, such as through the common law, other measures in the Bill and earlier Defamation Acts.
Sir Peter Bottomley
Indeed—that is why my hon. and learned Friend’s career will not be interrupted by the passage of the Bill. Plenty of people will seek his advice. The condition in the proposed new clause in lieu states:
“(2) The permission of the court must be obtained in order to bring an action…(3) The court must strike out an application under subsection (2) unless”
it can show X, Y and Z. My point is that the courts also have a “may” power, which I hope they use.
The Trafigura event, which involved super-injunctions, was another example of people trying to shut down public knowledge, inquiry, discussion and debate.
Sir Peter Bottomley
I am aware of that—my hon. and learned Friend is guiding me into making my speech longer than I had intended.
When I was appointed to the Joint Committee on the draft Defamation Bill, I had hoped that the Government and their Law Officers would introduce positive proposals that went further than the Bill and that gave more power to people to speculate in public, defend their arguments and themselves. Defamation provides limits in that context.
When I had to take defamation action, I did so as a private individual. What was said about me made such action necessary—I was labelled, in effect, as a paedophile on the front page of a major Sunday paper. It struck me that it was not true, not privileged and damaging, and therefore that it provided justification for action. Auberon Waugh made a living for four years out of calling me all sorts of things under the sun. One journalist said, “Why don’t you sue him?” I said, “First, I don’t mind; secondly, it might be true; and, thirdly, it is not compulsory to sue.” It would be fair if those who take defamation action justified why they were taking it, so that they do not just pile up costs, which can become too great.
I should return to my earlier point. What comes before peer review? Suppose I am a scientist or someone else who suspects that there is a link between a commercial product and a bad consequence. I should not have to keep absolutely silent about it until I have managed to do a research study, which would involve getting the funding for the research study, finishing it, delivering it to the magazine so it can send it to other publications, and getting permission to make it public. Speculation requires people having the ability to speak more openly, but perhaps not always with certainty—they may have to put their views in terms of speculation rather than of direct accusations.
We have had the recent case—it is now finished—of the fraud related to the device that was supposed to detect improvised explosives. If someone had spoken up against that company long before there was evidence for the court case, would they have faced a defamation action? We should remember that many magazines and newspapers do not have a great deal of money.
If we accept the Lords amendment and pass the Bill, we will have done good, but not enough. I therefore make a plea to the Minister—she does not need to answer this point today—to work out how the relevant Departments can, either by themselves or by proxy, monitor defamation actions. They should have studies that report on the kinds of actions that are being taken, the writs that are being issued, the writs that are served having been issued, and the results—whether there is a settlement or whatever.
Defamation Bill
Debate between Lord Garnier and Peter Bottomley(11 years, 7 months ago)
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Sir Edward Garnier
That is not only fundamental; it is highly uncontroversial. Human beings can get damages for hurt to their feelings; companies cannot. One cannot libel a company by accusing it, for example, of adultery, whereas one can so libel an individual. There are plenty of obvious and not very surprising differences between the law relating to individuals and the law relating to companies, but there are examples of things which affect companies’ trading reputations, which should be susceptible to protection.
We should also bear it in mind that there are different types of company. There are not-for-profit companies which are not in the business of making money and which, if they were libelled, would not lose money. It may well be said in response to me that the amendment deals with that. They would get permission from the court to bring that action, but that just creates another hurdle, as the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), made clear.
Sir Peter Bottomley
I would be grateful if my hon. and learned Friend could advise briefly on two points. First, at which stage should the courts have said, “We are not going to go further with the claim against Dr Simon Singh or against Dr Peter Wilmshurst”? Secondly, with reference to loss, in 1950 two doctors said that tobacco is very bad for people’s health and asbestos is very bad for people’s lungs. That was not the general view. It was an insight, and the companies involved in selling tobacco and selling asbestos could have sued for loss. That should have been struck out as well. There should be no libel for such cases. How would my hon. and learned Friend stop that kind of thing without the proposed new clause?
Sir Edward Garnier
I shall not unwind the case of Singh or the Wilmshurst case; they have been before the courts and have been dealt with. As it happens, the case of Simon Singh became controversial because it was an argument about whether the words complained of constituted allegations of fact or whether they were capable of constituting comment. That is the point on which it went to the Court of Appeal.
There was an action in South Africa brought by a tobacco company which sued and recovered damages on the allegation that its products promoted cancer. Things change. That is the advantage of having an organic system of law which enables the courts to deal with evidence and reach conclusions about whether a company or anyone else has been attacked inappropriately.
As I was saying to the hon. Member for Cambridge (Dr Huppert), it is not all that hard to think of statements which seriously injure the general commercial reputation of trading and charitable organisations. An arms company—
Defamation Bill
Debate between Lord Garnier and Peter Bottomley(12 years, 2 months ago)
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Sir Peter Bottomley
Clause 4(6) states:
“The common law defence known as the Reynolds defence is abolished.”
My hon. and learned Friend rightly reminds us that the judge in that case made the statement about “amongst other matters”. Does he interpret subsection (6) as meaning that no other matter may be brought up by any judge, and that we are left only with what will be the statutory law?
Mr Garnier
Yes and no. Subsection (2) includes the phrase “amongst other matters”, so it puts what Lord Nicholls said in the Reynolds case into statutory form. I think that it is more sensible to leave this in the form of developing common law, but if we are to set something in stone, clause 4 is better than the somewhat confusing provision tabled by my right hon. Friend the Member for Bermondsey and Old Southwark.
Bad points are never improved by repetition, but it is a pity that we are doing away with the common law. Although I have lost that battle, I might as well wear my black in mourning at its passing.
Mr Garnier
In parenthesis to what I was saying about the right hon. Member for Rotherham, I thank my right hon. Friend the Secretary of State for Justice for his kind remarks and congratulate him on his new position. I congratulated the new Under-Secretaries of State, my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) earlier this afternoon. If my right hon. Friend maintains the tone that he adopted during his speech, this Bill will not only be improved, but markedly so. I am grateful for the stance that he took, which was in marked contrast to that taken by the right hon. Member for Rotherham, who thought it amusing, no doubt, to make personal remarks about others who cannot protect themselves here; but let us leave that there.
I also thank the right hon. Member for Tooting (Sadiq Khan), the shadow Secretary of State for his words and the approach that he and his Front-Bench team will take as the Bill goes to the other place. There is now an opportunity to develop a new defamation Act that will meet some apparent needs, such as how the law is applied and libels dealt with in relation to the internet. It is time to deal with such things.
I have noted on my copy of the Bill something that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) said earlier about clause 1. As drafted, the clause confuses what is defamatory and the consequences of a defamatory statement. I hope that by the time the Bill becomes an Act, the clause will read: “A defamatory statement is not actionable unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant”. Many things are defamatory that might not cause much damage, and many things are not very defamatory but can cause disproportionate damage. The wording that my hon. Friend and I have coincidently come up with deals with that point. I dare say that others will think more carefully about that as the Bill moves forward.
On the issue of truth and honest opinion, the way the Bill is constructed is sensible. In my opinion, the law did not need changing but, if it is to be changed, clauses 2 and 3 deal with it.
I have said what I had to say about clause 4 and the Reynolds defence. I want briefly to talk about clause 6. There has been a huge amount of campaigning from various groups, such as PEN, Sense about Science and so forth, largely based on the case of the chiropractors against Simon Singh. I will not go into the facts of the case. Much of it was misunderstood, but the nub of the case was this: did the words complained about constitute allegations of fact or comment? That does not matter, because the argument and the campaign decided that academic criticism should almost be free from the law of libel.
Once we have got over that concern, we need to think more carefully about whether learned societies, which are not corporate bodies or profit-making companies, should have a right to sue in damages. We no longer allow local authorities to sue for damage to their governing reputation. Thirty five years ago, I used to get injunctions, for goodness’ sake, on behalf of local authorities, as corporate bodies that felt that they had been defamed by the local paper. Looking back, it is ridiculous to think that the Derbyshire county council case was not decided earlier, but it was not. For some decades now, it has not been possible for local authorities to sue in defamation. I rather suspect that the royal college of this, that or the other should not be allowed to sue either, although I must distinguish between that and the right of presidents and other officers of those associations to bring a personal action, if they are defamed.
Sir Peter Bottomley
There is one obvious problem with putting into statute things decided by judges and juries, which is common law. Would such a judgment be possible were the Bill to become law? Would the judges—juries would not be involved—be able to make a decision saying that a body corporate, whether charitable, non-profit or commercial, would be barred from taking out an action, even if it had more merit than the ludicrous one of the chiropractors against Simon Singh?
Mr Garnier
It is probably unwise to give cocktail advice across the Chamber, even to my hon. Friend.